Central Excise-II, Thane Vs. Daisy Trading Corp.  INSC 520 (16 March
APPELLATE JURISDICTION CIVIL APPEAL NO. D.23763 OF 2008 Commnr. of Central
Excise-II, Thane .. Appellant(s) Versus Daisy Trading Corporation ..
Respondent(s) ORDER Delay condoned.
appeal by the revenue under Section 35L(B) of the Central Excise Act, 1944
(`the Act' for short) is directed against order dated 21st February, 2008
passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal
Bench, at Mumbai (for short `the Tribunal'). By the impugned order, the
Tribunal has dismissed the application preferred by the revenue for
rectification of its final order No.A/514/2007/C-I(EB) dated 23rd July,2007,
which is not questioned in this appeal.
application for rectification was preferred by the revenue on the ground that
in the light of the order dated 23rd August, 1991 passed by the Commissioner of
Central Excise, inter-alia, holding that the subject goods, namely, canvas
cloth and tarpaulin cloth fall for classification under Chapter heading 52.07
of Schedule II to CETA, 1985, a mistake apparent from the record had crept in
the order of ..2/- :2:
Tribunal, requiring rectification. Rejecting the application, the Tribunal has
come to the conclusion that the stated ground cannot be said to be a mistake
apparent from the record, falling within the ambit of Section 35(c)(2) of the
Act, inasmuch as the subject goods falling under both the headings, viz., 52.07
and 52.08 are not leviable to basic excise duty as the levy of such duty is
exempt and the said goods are leviable only to additional duty of excise, for
which confiscation is not permissible.
as it may, apart from the fact that the scope of Section 35(c)(2) of the Act is
very limited, the finding of the Tribunal that there is no mistake apparent
from the record in its order dated 23rd July, 2007 is a pure question of fact,
giving rise to no question of law requiring consideration by this Court.
Appeal is dismissed accordingly.
...................J. [ D.K. JAIN ]
...................J. [ R.M. LODHA ]
MARCH 16, 2009.